Sexual Offences
"Determining consent to any sexual activity would be easier if the legislation had defined the
terms 'agreement', 'freedom' and 'capacity' as they are used in Sexual Offences Act 2003, s.74,
and if it had clarified whether s.76 of the Act exhaustively stated the relevance of deceptions."
Discuss, with reference to the cases decided under the 2003 Act. [2018]
Intro
AF: Define terms more clearly more prescriptive, introduces more legal certainty
CA: Leaving terms vague allows jury to have more flexibility in interpreting to ensure just
outcome
Argument For
Existing ambiguities need for legal certainty
“Agreement”
o Does this include cases of conditional consent? Unclear and court had to clarify in
R v Assange
o Conditional consent: Extent to which condition has to relate to performance of act
Assange v SPA: Held that use of condom relates to performance of act if V
made condom use a condition of sex, then deception as to use of condom will
negate consent
R v Linekar: Held that condition for money to be paid in return for sex, was
one that related to payment rather than sex itself failure to pay did not
negate consent
But this distinction in Linkear is highly arbitrary, can be argued that the
condition relates to V’s purpose for performing the act thus this condition
cannot be viewed as completely distinct from the V’s consent
o Deceptions that are not under s.76 – do they come under s.74, and if they do, do they
come under agreement?
“Freedom”
o Distinction between reluctant acquiescence and mere submission (the two categories
laid out in R v Olugboja) is extremely unclear need to clarify
Implication of this lack of clarity is significant because reluctant
acquiescence is generally held to be consent, while mere submission is not
lack of clarity gives jury a lot of flexibility in determining which category
V’s consent falls into has implications on whether V consented in the eyes
of the law and thus whether D is liable
Allowing jury to determine this with no guidance from the law allows too
much flexibility may lead to inconsistent case rulings
o Distinction may lead to unfair outcomes
If we say reluctant acquiescence is consent, we are accepting that a degree of
felt pressure is lawful unfair to V
Application of subjectivity: Victim 1 and victim 2 have different states of
mind for the same pressure
"Determining consent to any sexual activity would be easier if the legislation had defined the
terms 'agreement', 'freedom' and 'capacity' as they are used in Sexual Offences Act 2003, s.74,
and if it had clarified whether s.76 of the Act exhaustively stated the relevance of deceptions."
Discuss, with reference to the cases decided under the 2003 Act. [2018]
Intro
AF: Define terms more clearly more prescriptive, introduces more legal certainty
CA: Leaving terms vague allows jury to have more flexibility in interpreting to ensure just
outcome
Argument For
Existing ambiguities need for legal certainty
“Agreement”
o Does this include cases of conditional consent? Unclear and court had to clarify in
R v Assange
o Conditional consent: Extent to which condition has to relate to performance of act
Assange v SPA: Held that use of condom relates to performance of act if V
made condom use a condition of sex, then deception as to use of condom will
negate consent
R v Linekar: Held that condition for money to be paid in return for sex, was
one that related to payment rather than sex itself failure to pay did not
negate consent
But this distinction in Linkear is highly arbitrary, can be argued that the
condition relates to V’s purpose for performing the act thus this condition
cannot be viewed as completely distinct from the V’s consent
o Deceptions that are not under s.76 – do they come under s.74, and if they do, do they
come under agreement?
“Freedom”
o Distinction between reluctant acquiescence and mere submission (the two categories
laid out in R v Olugboja) is extremely unclear need to clarify
Implication of this lack of clarity is significant because reluctant
acquiescence is generally held to be consent, while mere submission is not
lack of clarity gives jury a lot of flexibility in determining which category
V’s consent falls into has implications on whether V consented in the eyes
of the law and thus whether D is liable
Allowing jury to determine this with no guidance from the law allows too
much flexibility may lead to inconsistent case rulings
o Distinction may lead to unfair outcomes
If we say reluctant acquiescence is consent, we are accepting that a degree of
felt pressure is lawful unfair to V
Application of subjectivity: Victim 1 and victim 2 have different states of
mind for the same pressure
